ABSTRACT
There seems to be a paradox at the heart of the law on express trusts. On the one hand the trust is predicated on principles of equity which are in turn traceable to philosophical ideas of fairness and justice which were identified in Chapter 1 with Aristotle and others. On the other hand much of the law discussed in this Part 2 of this book to do with express trusts has been concerned with very technical ideas which have resembled common law principles of contract more than flexible principles used to achieve fair or just results at the whim of whichever judge is sitting to hear a case. Therefore, while we began this book with high-sounding talk of conscience, fairness and justice, we came quickly to concern ourselves with hard-nosed certainties, formalities and the beneficiary principle. There have been some cases which have appeared to use the approach favoured by Aristotle in refusing to apply strict rules of trusts law or of common law where that would generate injustice. So, we have considered how secret trusts circumvent the provisions of the Wills Act, how Rochefoucauld v Boustead prevented a defendant from relying on her strict legal rights to defraud the plaintiff, how Hunter v Moss sought to prevent the defendant from relying on a strict principle of
so on. Consequently, there appears to be a conflict between some aspects of trusts law which are concerned with the implementation of hard-and-fast rules and other aspects of equity which are concerned with the application of principles of fairness to cases where that is more appropriate than applying hard-and-fast rules.
